On Tuesday, Supreme Court Justice Samuel Alito decided to make same-sex marriages advocates face the logical extension of their position, asking bluntly why four people of opposite sexes could not marry, given the argument that two people of the same sex should be able to wed. Earlier in the day, he also challenged the basic premise of her same-sex marriage argument, prompting an apology.
Alito fired the question of four partners in a marriage at Mary L. Bonauto, the attorney arguing for same-sex marriage advocates. Alito, a staunch Roman Catholic, threw down the gauntlet in the following exchange:
Alito: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?
Bonauto: I believe so, Your Honor.
Alito: What would be the reason?
Bonauto: There’d be two. One is whether the State would even say that there is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the wait and see question for a moment, if I may. Because —
Justice Antonin Scalia: Well, I didn’t understand your answer.
Alito: Yes. I hope you will come back to mine. If you want to go back to the earlier one —
Bonauto: No, no.
Alito: — then you can come back to mine.
Bonauto: Well, that’s what — I mean, that is — I mean, the State –
Alito: Well, what if there’s no — these are 4 people, 2 men and 2 women, it’s not — it’s not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let’s say they’re all consenting adults, highly educated. They’re all lawyers. What would be the ground under — under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?
Bonauto: Number one, I assume the States would rush in and say that when you’re talking about multiple people joining into a relationship, that that is not the same thing that we’ve had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental right —
Alito: But — well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it’s a good one. So this is no — why is that a greater break?
Bonauto: The question is one of — again, assuming it’s within the fundamental right, the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that’s my answer on that.
Earlier, Alito had challenged Bonauto’s basic premises, asking, “How do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
Bonauto answered lamely, “Your Honor, my position is that times can blind.” She added,
Bonauto: And if you think about the example of sex discrimination and what it — again, I assume it was protected by the Fourteenth Amendment, but it took over 100 years for this Court to recognize that a sex classification contravened the Constitution.
But then, in short order, between Reed and Craig v. Boren, we went from a rational-basis approach to — to heightened scrutiny, acknowledging that this kind of discrimination is invidious. And in the same vein here, we have a foundation of Romer, of Lawrence —
Ginsburg (interrupting): And an institution —
Alito: I don’t really think you answered my question.
Bonauto: I’m sorry.